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Monday, August 31, 2015

Constitution Classes This Week. . .

Three of the most controversial clauses in the United States Constitution are this week's topics in the various Constitution Classes I teach in Southern California. Below is information on each class, and a short write up about the clauses.

Instructor Douglas V. Gibbs

On Monday Night, August 31, 2015, 6:00 pm to 7:00 pm
C.H.O.B., 119 W. Peck Street, Lake Elsinore (near Main Street shopping district)
Article I, Section 8 with special attention on the Commerce Clause.

Commerce Clause

Article I, Section 8, Clause 3 grants to the Congress the authority to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.

The States were often at odds regarding a number of issues. Interstate commerce was among their disagreements. The States implemented Protectionist Tariffs, designed to protect domestic industries against competition from other States. As sovereign entities, the States continually tried to gain the upper hand on each other in regard to commerce across State lines. Recognizing that the squabbles between the States were actually hindering the movement of commerce across State lines, the federal government in this clause was given the authority to do what was necessary to enable the flow of commerce to be more regular.

When you turn on a faucet full blast you are regulating the flow, just as you are regulating the flow when you restrict it by turning the faucet off. Likewise, the federal government was expected to act as a mechanism that ensured the flow of commerce between the States was more regular.

The 1828 Webster Dictionary defines regulated in its second definition: “To put in good order.” Some historians state that the word “regulate” in the 18th Century meant “To make regular.” The word “restrict” was not used in the 1828 definition until the third and final definition of the word, or as the “least used” definition. In today’s dictionary “restrict” appears in the first definition of regulate.

In modern politics, the Commerce Clause has been interpreted to mean the opposite of its original intent. The Commerce Clause in today’s political atmosphere is used as a means to restrict and heavily control commerce between the States. If one was to adopt the progressive definition of the Commerce Clause, one could then surmise that the Founders wrote this clause because commerce was flowing too easily, and needed to be controlled by the federal government. Such a notion is not only untrue, but is not consistent with the context of the times. The Founders believed in limiting the powers of the Federal Government, so why would they allow the Federal Government the kind of unlimited powers over interstate commerce as suggested by today’s progressives?

The federal government’s role according to the Commerce Clause was to act as a referee, or mediator, whenever the flow of commerce was hindered by disagreements or conflicts between the States, while with foreign nations and the Indian Tribes the federal government was expected to take a more active role.

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On Tuesday Night, September 1, 2015, 6:00 pm to 7:00 pm
AllStar Collision, 522 Railroad Street, Corona (near Main and Grand intersection at 91 Fwy)
14th Amendment, Citizenship Clause

Citizenship Clause

The 14th Amendment to the United States Constitution failed in 1866 after the southern States rejected the proposed amendment. After a second attempt to ratify the amendment, it was adopted on July 9, 1868. The ratification of the 14th Amendment occurred after the federal government began to govern the South through a system of military districts. Some historians question the validity of the ratification of the 14th Amendment because it is believed by these historians that the southern States ratified the amendment under duress, and pressure applied by the northern governorships in each of the southern States during the early part of the Reconstruction Period.

The first clause of the 14th Amendment is known as “The Citizenship Clause.” The clause was intended to ensure the children of the emancipated slaves, as well as the newly freed slaves, would be considered citizens without any room for argument. The clause reads:

“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

This clause has been misinterpreted to mean all persons born in the United States are automatically citizens, which is not the case. The defining term in this clause that enables the reader to recognize that citizenship needs more than just being born on American soil reads: "subject to the jurisdiction, thereof."

To understand the term jurisdiction, one may go to the debates on the congressional record of the 14th Amendment. In those debates, and in articles of that time period written to explain the intent of the language of the amendment, one finds that “full jurisdiction” was meant to mean “full allegiance to America.” The intention was to protect the nation against persons with divided loyalties.

The writers of the 14th Amendment wished to follow the importance of "full loyalty" as portrayed by the Founding Fathers. As far as the founders were concerned, there could be no divided allegiances. They expected citizens to be fully American.

Despite the defeat of the Confederacy in the American Civil War, the emancipated slaves were not receiving the rights and privileges of American citizens as they should have been. The former slaves were present in the United States legally, and because they were here legally they were "subject to the jurisdiction thereof," but they were still not receiving any assurance of equal protection under the law.

The Civil Rights Act of 1866 was created in the hopes of correcting the problem. Some of the language in the Civil Rights Act of 1866 states, "All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States. ... All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other."

The definition of "persons within the jurisdiction of the United States" in that act was all persons at the time of its passage, born in the United States, including all slaves and their offspring, but not having any allegiances to any foreign government.

Michigan Senator Jacob Howard, one of two principal authors of Section 1 of the 14th Amendment (Citizenship Clause), noted that its provision, "subject to the jurisdiction thereof," excluded American Indians who had tribal nationalities, and "persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers."

Senator Howard’s responses to questions regarding the language he used in the Citizenship Clause were recorded in The Congressional Globe, which are the recorded transcripts of the debates over the 14th Amendment by the 139th Congress:

Mr. HOWARD: “I now move to take up House joint resolution No. 127.”

The motion was agreed to; and the Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H.R. No. 127) proposing an amendment to the Constitution of the United States.

“The 1st Amendment is to section one, declaring that all persons born in the United States and Subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. I do not propose to say anything on that subject except that the question of citizenship has been fully discussed in this body as not to need any further elucidation, in my opinion. This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.”

Senator Howard even went out of his way to indicate that children born on American soil of foreign citizens are not included.

Clearly, the framers of the 14th Amendment had no intention of freely giving away American citizenship to just anyone simply because they may have been born on American soil.

The second author of the Citizenship Clause, Illinois Senator Lyman Trumbull, added that "subject to the jurisdiction of the United States" meant "not owing allegiance to anybody else."

The full quote by Senator Trumbull:

"The provision is, that 'all persons born in the United States, and subject to the jurisdiction thereof, are citizens.' That means 'subject to the complete jurisdiction thereof.' What do we mean by 'complete jurisdiction thereof?' Not owing allegiance to anybody else. That is what it means."

Trumbull continues, "Can you sue a Navajo Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we wouldn't make treaties with them...It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens."

Senator Howard concurred with what Mr. Trumbull had to say:

"I concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word 'jurisdiction,' as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now."

Based on these explanations by the writers of the clause, then, it is understood that the intention was for those who are not born to American citizens to have no birthright to citizenship just because they simply were born inside the borders of this country.

The courts have interpreted the Citizenship Clause to mean other things, but we must remember that the Constitution cannot be changed by the courts. Changes to the Constitution can only be made by amendment (Article V.).

It was through the progressive actions of the Lincoln administration in the American Civil War, and the actions of the courts to incorporate the Bill of Rights to the States, that America ceased to be “The United States Are,” and became a more nationalistic “The United States Is.”

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On Thursday Night, September 3, 2015, 6:30 pm to 7:30 pm
Faith Armory, 41669 Winchester Road, Temecula (just west of Jefferson Ave)
14th Amendment, Equal Protection Clause

Privileges and Immunities Clause

The next clause, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” was expected to protect the newly emancipated slaves from local legislation that may treat them differently. This clause was a direct response to the Black Codes, laws passed in the States that were designed to limit the former slaves from obtaining all of the freedoms they thought they had been guaranteed.

The Due Process Clause of the 14th Amendment prohibits state and local governments from depriving persons of the proper due process of law. The right to a fair trial was to be extended to all persons, including the emancipated slaves.

Due Process Clause and Equal Protection Clause

The Due Process Clause, and the Equal Protection clause, have been the subject of debate since the language written by Congressman John Bingham, the principal author of the later part of Section 1 of the 14th Amendment, was first penned. Bingham believed the federal government should use all national tools available to ensure the southern States behaved as instructed. Bingham repeatedly stated his belief that the Fourteenth Amendment would enforce the Bill of Rights against the States, but the majority of the members of Congress present did not concur with his muddled and inconsistent argument.

Author Raoul Berger, in his book Government by Judiciary, discussed whether the 14th Amendment should be construed to enforce the Bill of Rights against the States. Relying on the analysis of Professor Charles Fairman in his published article, Does the Fourteenth Amendment Incorporate the Bill of Rights?, Berger concluded that Bingham was a "muddled" thinker whose views should be discounted. Berger agreed with Fairman that the framers of the 14th Amendment did not intend it to enforce the Bill of Rights against the States. Berger rejected even selective incorporation, arguing that the Amendment's framers did not intend that any of the first eight amendments should be made applicable to the States through the 14th Amendment

Antislavery activists largely supported Bingham’s conclusion that that Bill of Rights must be applied to the States, and such application must be enforced by the federal government. Though the Bill of Rights was originally intended by the Founding Fathers not to apply to the States, and with less than a centuryt since the American Revolution and the writing of the Constitution behind them, Bingham’s supporters contended that local jurisdiction over cases regarding an individual’s rights could no longer be allowed because the southern States could not be trusted to be fair to the newly emancipated slaves.

Bingham’s call for an incorporation of the Bill of Rights to the States established the concept that all people’s rights are supposed to be protected by the federal government. The Founding Fathers did not apply the Bill of Rights to the States from the beginning because giving that kind of power to a potentially tyrannical federal government carries with it many pitfalls. As the quote by Gerald Ford goes, “A government big enough to give you everything you want is a government big enough to take from you everything you have.” Nonetheless, despite the dangers of a central government dictating to the States regarding their laws regarding individual rights, because of the mistreatment of the former slaves by the Southern States, the Privileges and Immunities Clause, the Due Process Clause and the Equal Protection Clause, have been commonly interpreted to mean that the Bill of Rights is applicable to the States.

Since the Incorporation of the Bill of Rights did not take hold as a result of the 14th Amendment, as the statists that supported Bingham’s position had desired, the federal courts stepped in and took pursuit. Pursuing a nationalist agenda, the courts disregarded the original intent of the Framers of the Constitution, as well as the conclusions of the Congress regarding the 14th Amendment, and began to selectively incorporate the Bill of Rights to the States, beginning with the Slaughterhouse Cases just five years after the ratification of the 14th Amendment in 1868. A five to four vote by the high court interpreted the Privileges and Immunities Clause as the authority to enforce The Bill of Rights against the States. Subsequent cases also used the 14th Amendment as an authority for incorporation.

The courts, through this process of incorporating The Bill of Rights to the States, have changed the Constitution through unconstitutional means, and against original intent. As originally intended, all provisions in the U.S. Constitution apply to the federal government, unless otherwise noted. The Bill of Rights was originally intended to apply only to the federal government, and if we are to remain in line with the original intent of the Founding Fathers, State sovereignty must remain protected by that original intent.

The attitude of the southern States, and their refusal to treat the former slaves fairly led to a perceived need for clarification and enforcement by the federal government, which led to the passage of the Civil Rights Act of 1866, and eventually to the Civil Rights Movement of the 1960s.

A separate but equal doctrine existed for more than fifty years, despite numerous attempts to ensure blacks enjoyed full rights and privileges of citizenship.

In modern politics, laws continue to test the limits of the Equal Protection Clause. While the clause was intended to make sure that everyone is treated equally under the law, politicians supporting the Affordable Care Act have handed out exemptions to members of Congress, and some individuals or corporations, allowing those that receive the exemptions to be treated differently under the law.

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Free Pocket Constitutions handed out to each attendee. Free Class. Monetary gifts are welcomed to help cover printing and travel expenses.

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